FINACT2018A-04233-ROC.pdf

2018A-04233-ROC · Registrar of Contractors · 2019-01-11

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

IN THE MATTER OF THE CIVIL PENALTY Case No. 2018-04233 CITATION ISSUED TO: Docket No. 2018A-04233-ROC

David Ghica, FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on February 19, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $1,500.00 payable to the Registrar on or before the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 FINAL NOTE

On page 2, line 9 replace “October 25, 2018” with “October 24, 2018”. On page 2, a footnote states

“The hearing was continued to December 11, 2018”. There were no continuances in this matter and the

hearing was held on December 14, 2018.

Dated January 10, 2019.

Registrar of Contractors

/s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail January 10, 2019 to: Respondent David Ghica 18040 N 20th Dr Phoenix, AZ 85023 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge

Office of the Attorney General John Tellier, Assistant Attorney General Case No. 2018-04233 /mm

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 12/28/18 LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY No. 2018A-04233-ROC CITATION ISSUED TO: ADMINISTRATIVE LAW JUDGE David Ghica, DECISION RESPONDENT

HEARING: December 14, 2018 APPEARANCES: Respondent David Ghica did not appear. Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________

FINDINGS OF FACT

1. At all times relevant to this matter, Respondent David Ghica was not a

licensed contractor in the State of Arizona.

2. Investigator Chris Fultz is an online investigator for the Arizona Registrar

of Contractors (“Registrar”). Investigator Fultz previously worked for twelve years at

the Maricopa County Sheriff’s Office as a computer crimes investigator.

3. On or about September 9, 2018, Investigator Fultz conducted a search for

unlicensed entities advertising on the Craigslist website (“Craigslist”). See Exhibit 2.

4. Investigator Fultz found an advertisement for plumbing, electrical,

flooring, drywall, plaster, and paint on Craigslist. See Exhibits 2 and 3. The

advertisement included the name of “Dave” and a phone number. See Exhibit 3, page

2. The advertisement did not include the language “Not a licensed contractor.” See Exhibit 3. 5. Investigator Fultz searched the TruePeopleSearch website (“TruePeopleSearch”) to connect the phone number that he found on Craigslist to a person. Investigator Fultz discovered that the name “David Ghica” was associated with the phone number he had found on Craigslist. See Exhibit 4.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12/28/18 LEGAL

6. Investigator Fultz searched for the name “Ghica” in the Registrar’s records database and found the name of an individual “David Ghica.” See Exhibit 5. 7. David Ghica was found guilty of contracting without a license in three

prior cases with the Registrar. See id. One of the three cases was submitted to the

City of Mesa for criminal prosecution. See id.

8. On September 17, 2018, the Registrar issued a Cease & Desist Order

(“Order”) wherein Mr. Ghica was ordered to cease and desist all unlicensed advertising

in Arizona.

9. On October 25, 2018, the Registrar issued a Notice of Hearing setting the

above-captioned matter for hearing on December 14, 2018 at 1:00 p.m. 1

10. A hearing was held on December 14, 2018.

11. At hearing, the Registrar presented the testimony of Investigator Fultz and

submitted exhibits 1 through 5.

12. Mr. Ghica did not appear at the hearing. The Registrar mailed a copy of

the Notice of Hearing to Mr. Ghica by first-class mail to his address of record.

13. Mr. Ghica did not request to appear telephonically at the hearing and did

not request that the hearing be continued. Mr. Ghica did not appear, through an authorized officer, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Mr. Ghica did not present any evidence to support of his case. 14. Investigator Fultz attempted to contact Mr. Ghica during his investigation but Investigator Fultz was unsuccessful. Mr. Ghica subsequently contacted Mr. Ghica who was on probation through the city of Scottsdale. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See APR.’S. § 32-1101 et seq. 2. The Registrar bears the burden of proof to establish Respondent’s statutory

1 The hearing was continued to December 11, 2018. RECEIVED 12/28/18 LEGAL

violations by a preponderance of the evidence. See ARIZ. REV. STAT. (“A.R.S”) § 41- 1092.07(G)(2); A.A.C. R2-19-119(A); and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the

evidence is such proof as convinces the trier of fact that the contention is more

probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).

3. Arizona contracting law prohibits a person from advertising without a

license.2 Arizona contracting law prohibits a person from acting as a contractor without

a license.3 The law allows an exemption from licensure, with certain limitations, for a

“handyman.” An unlicensed handyman can perform construction work, with certain

exclusions, such as that the work does not require a permit, as long as the aggregate

price for the job, including labor and materials, does not exceed $1,000.00.4

4. A.R.S. § 32-1121(A)(14) provides as follows:

Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor materials and all other items, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. This exemption does not apply: (a) In any case in which the performance of the work requires a local building permit. (b) In any case in which the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made in contracts of amounts less than one thousand

A.R.S. § 32-1165. A.R.S. § 32-1164(A)(2). 4 A.R.S. § 32-1121(A)(14). RECEIVED 12/28/18 LEGAL

dollars, excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, for the purpose of evasion of this chapter or otherwise.

(c) To a person who utilizes any form of advertising to the public in which the person's unlicensed status is not disclosed by including the words "not a licensed contractor" in the advertisement. Emphasis added. 5. A.R.S. § 32-1166(A) authorizes the Registrar to assess “a civil penalty in an amount of at least two hundred dollars for each violation but not more than two thousand five hundred dollars for the multiple violations committed on the same day.” With respect to the appropriate amount of civil penalties for violations of A.R.S. § 32- 1151, A.R.S. § 32-1166(A) required the Registrar to “adopt rules covering the assessment of a civil penalty that give due consideration to the gravity of the violation and any history of previous violations.” Pursuant to this directive, the Registrar adopted A.A.C. R4-9-131.5 A.A.C. R4-9-131 sets forth permissible aggravating factors to be considered, in relevant part as follows:

In assessing a civil penalty as provided for under A.R.S. § 32-1166(A), the Registrar shall give due consideration to whether the person cited or any individual acting on that person’s behalf has committed one or more of the following acts in determining the gravity of the cited violation: 1. Falsely represented to be a licensed contractor. 2. Failed to perform any work for which money was received. 3. Executed or used any false or misleading documents for the purpose of inducing a person to enter into a contract or to pay money for work to be performed. 4. Made false or misleading statements for the purpose of inducing a person to enter into a contract or to pay money for work to be performed. 5. Failed or neglected to apply funds which were received for the purpose of obtaining or paying for services, labor, materials, or equipment. 6. Performed work that was or had the potential to become hazardous to the health, safety, or general welfare of the public. 7. Performed work that deliberately was in violation of building codes, safety laws, labor laws, workers’ compensation laws, or unemployment insurance laws. RECEIVED 12/28/18 LEGAL

6. The Registrar established by a preponderance of the evidence that

Respondent advertised without a license in violation of A.R.S. § 32-1165. In addition,

the evidence presented at hearing shows that Mr. Ghica failed to include the phrase,

“Not a Licensed Contractor” with his advertisement on Craigslist. Because Respondent

this matter is Respondent’s fourth violation of unlicensed advertising laws, the

assessed civil penalty of $1,500.00 is warranted. The Tribunal concludes that a civil

penalty of $1,500 for advertising without a license is warranted in this case.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding

that Respondent David Ghica violated A.R.S. § 32-1165 and affirm the imposition of a

civil penalty in the amount of $1,500 for advertising without a license. The $1,500 civil penalty shall be paid in certified funds to the Registrar on or before the effective date of the final order in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be forty (40) days from the date of certification.

Done this day, December 19, 2018. /s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. 9. Has committed any other act which would otherwise be cause for disciplinary action if the person cited had been properly licensed pursuant to A.R.S. Title 32, Chapter 10. 10. Has committed two or more prior violations. 11. Performed work that has caused loss or damage to the structure, its appurtenances, or property being worked upon or has caused loss or injury to any person. RECEIVED 12/28/18 LEGAL

Jeffrey Fleetham, Director Registrar of Contractors